Labreck v. Bank of America, N.A. et al

Filing 37

MEMORANDUM ORDER: The motion to amend is DENIED (D.I. 30 ), the request for subpoenas is DENIED (D.I. 27 ). Plaintiff shall request Clerk to issue summons. Plaintiff shall return to Clerk USM 285 form(s) and service copies. Upon receipt, the U. S. Marshal shall personally serve process as directed by plaintiff. Plaintiff shall also complete and return to the Clerk of Court original "U.S. Marshal-285" form(s) and a copy of the complaint (D.I. 3 ), amended complaint (D.I. 9 ), and addendum to amended complaint (D.I. 11 ) for personal service upon Experian. Failure to request issuance of summons and to provide a "U.S. Marshal 285" form containing a complete address for defendant and a copy of the complaint, amended complaint, and addendum to amended complaint within thirty (30) days from the date of this order may result in the dismissal of Defendant pursuant to Federal Rule of Civil Procedure 4(m).(Copy to pltf.) Signed by Judge Richard G. Andrews on 11/6/2017. (nmg) Modified on 11/6/2017 (nms).

INTHE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
PETER JOSHUA LABRECK,
Plaintiff,
v.
BANK OF AMERICA, N.A., et al.,
Defendants.

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) Civil Action. No. 17-015-RGA
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MEMORANDUM ORDER
At Wilmir:igtonihis

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day of November, 2017,

IT IS ORDERED, as follows:
·1.

:Introduction. Plaintiff, Peter Joshua Labreck ("Plaintiff"), an inmate housed

at-the St. Clair County Jail in-Port Huron, Michigan, filed this action on January 5, 2017.
(D.I. 3). He proceeds prose and has been granted leaveto:proceed intorma pauperis.

2.

Supplemental Sei:vice. Pursuant to Fed. R. Civ. P. 4(b), (c)(1 ), (c)(3), and

(h), Plaintiff shall request the Clerk of Court to prepare a summons for Defendant Experian
whofailedtoreturnthe "Waiver of Service of Summons." (SeeD.I. 25). Plaintiff shall also
complete and Teturn to the Clerk of Court original "U.S. Marshal-285" form and a copy of
the complaint (D:I. 3), amended complaint (D.I. .9), and addendum to amended complaint
(D.I. 1·1 )·for:personal service upon Experian. Failure to,request issuance of:summons

and to :provide a ...U.S. Marshal 285"·form ·containing :a complete address for
defendant :and a .copy of :the complaint, ·amended complaint, and addendum to
amended complaint within thirty (30) days ·from the date of this order may result in
·the dismissal of Defendant.pursuant to Federal Rule of Civil-Procedure 4{m).

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3.

Upon -receipt of the request-for issuance of summons, the USM-285 form and

a copy of the complaint, amended complaint, and addendum to .amended complaint
required by paragraph 2 above, the Clerk of Court .shall issue the summons and transmit
the summons, USM-285 form, and copy of the complaint (D.I. 3), amended complaint (D.I.
9), and addendum to amended complaint (0.1. 11), the May 5, 2017 service order (D.1. 12),
the filing fee order( s ), and a copy of this Order to the USMS for immediate service
pursuant to Fed. R. Civ. P. 4(c). The USMS shall personally serve process and a copy of
this order upon Experian pursuant to Rule 4 of the Federal Rules of Civil Procedure and 28
U.S.C. § 566(c).
4.

Within ten days after personal service is effected, the US MS shall file the

return of .service for defendant, along with evidence of any attempts to :secure a waiver of
service ·of process and of the costs subsequently incurred in effecting service on said
defendant. Said costs shall be-enumerated on the USM-285 form. Costs ofservice will be
·taxed against the :personally served defendant in accordance with the provisions of
-Federal-Rule of Civil Procedure 4( d)(2) unless the defendant shows good cause for such
·failure.
5.

·Motion:to Amend. On September 14, 2017, Plaintiff filed a "second

amended complaint" construed by the Court as .a motion for leave to amend. (D.I. 30). In
·the motion, Plaintiff incorporates by reference all the allegations in the complaint, amended _
complaint, and addendum and adds a new defendant. Plaintiff filed the motion without complyi11g with the Local Rules ofthis Court.
6.

Local Huie 1q:1 provides that a party who moves to amend a pleading· shall

attach to the motion: (1) the proposed pleading as amended, complete with a handwritten

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or electronic signature; and (2) a form of the amended pleading which indicates in what
respect it differs from ihe pleading which it amends, by bracketing or striking through
materials to be deleted and underlining materials to be added. Plaintiff did not do this.
Therefore, the motion to amend is DENIED:1 (D.I. 30).
7.

·Request for:Subpoenas. On September 5, 2017, Plaintiff asked the Clerk

of Court to issue twelve subpoenas to produce documents pursuant to Fed. R. Civ. P. 45.
(D.I. 27). A federal court has the inherent power to protect any one from oppressive use of.
process, even if no oppression is actually intended. Badman v. Stark, 139 F.R.D. 601, 605
(M.D. Pa. 1991) (citation omitted). Plaintiff does not indicate to whom the subpoenas will
be directed, what documents he seeks, how the .documents he seeks are relevant, if he
seeks documents from a named defendant, or whether he has the ·ability to pay for any
costs associated with issuance of the subpoenas, such as photocopy-fees, witness-fees, or
mileage. Therefore, the request is DENIED. 2 (D.I. 27).

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UNITED.STA

S DISTRICT JUDGE

It appears that Plaintiff's proposed amendment contains claims that are preempted by the
-Fair CreditReporting Act. See·15 U.S.C. §"1681t(b)(1)(F); see e.g., Calloway v. Green
Tree Servicing, LLC, 607 F. Supp. 2d 669, 675 (D. Del. 2009). Thus, amendment would
be futile. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.
1997).
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The Court was recently advised that the Wisconsin Department of Corrections received a
subpoena to produce documents related to one of its inmates. The -subpoena contains the
caption of this case and, purportedly, was issued by the District of Delaware. District Court
personnel confirmed .that the subpoena was not issued or signed by any District of
Delaware court personnel.

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